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Wednesday, 6 December 1911

Senator MILLEN (New South Wales) . - I regret very much the circumstances which have rendered necessary the presentation of this Bill. Honorable senators will recollect that I had the honour of introducing, and, with their assistance, of passing through this Chamber, a measure which was subsequently declared by the High Court to be defective.

Senator de Largie - We never could understand why the Government of which the honorable senator was a member did that.

Senator MILLEN - I can assure Senator de Largie that what was done then, was done in the best possible faith, and in the belief that we were entitled to proceed with that measure under the very large powers which are conferred upon us by the trade and commerce section of our Constitution. That Bill was not brought forward hastily. Time and again 1 referred it to the Crown Law officers; and, ultimately, upon their advice, it was decided that we 'possessed the requisite power. That mistake has brought about a position which everybody regrets. In introducing that Bill, the desire was to confer the benefits which it offered upon as large a section of the seafaring community as possible. There is only one matter connected with the measure which is now under consideration to which I desire to direct attention. I refer to a judgment which was recently given by Mr. Justice Scholes in New South Wales. He drew attention to a difficulty which presented itself to him in a case which was brought, under State law, before the Court over which he presided. Although he was dealing with State law, it seems to me that the same difficulty is present in this Bill.

Senator Guthrie - This is absolutely a State measure.

Senator MILLEN - If the honorable senator can show me how the Commonwealth Parliament can pass a State law-

Senator Guthrie - It will apply to the territorial waters of the States.

Senator MILLEN - Whatever law we may pass must be a Federal . law. But, whether this Bill will go as far as the honorable senator suggests that it ought to go, is another matter. To revert to the question which I was previously discussing, I wish to say that Mr. Justice Scholes experienced great difficulty in determining the case which was brought before him - a case in which a workman had left dependants who were both wholly and partially dependent upon him,. If the VicePresident of the Executive Council will look at the first schedule' to this Bill, he will find that provision is there made for the payment of compensation to the dependants of a seaman who were wholly dependent upon his earnings. Further on, provision is made for the payment of compensation to those who are partially dependent upon his earnings. Now Mr. Justice Scholes had to deal with a case in which a workman had left dependants who were both wholly and partially dependent upon him. In such circumstances, was the Judge to ignore those who were partially dependent upon the workman, or was he to allocate the compensation between the two sets of dependants? Was he to assess the compensation upon the scale which was set out for those who were wholly dependent upon the workman, or was he to assess it upon the scale set out for those who were only partially dependent upon him? These points presented themselves very clearly to the Judge, and they appear to me to be equally present in this Bill. The same terms are employed in it as are employed in the State Act, and the same provision is made as between those who are wholly dependent upon a seaman whose death is caused by accident, and those who are partially dependent upon him. I note, too, that in this Bill, there is the same absence of direction as to how the Judge shall proceed in a case in which a seaman leaves dependants who are both wholly and partially dependent upon him. I would suggest, therefore, that the Government should carry this Bill to the point at which it will be possible to recommit it to-morrow, and that, in the meantime, they should look up the judgment of Mr. JusticeScholes, with a view to seeing if it is not possible to devise some means of meeting the difficulty to which I have referred-

Senator Rae - Does not the Bill provide for such cases?

Senator MILLEN - Personally, I am of opinion that when a case under this Bill comes before the Court, the Judge will be met with exactly the same difficulty as that which confronted Mr. Justice Scholes when dealing with the State law. The measure is plain enough, so far as it enables the Judge to deal with the case of a seaman who leaves dependants who are either wholly or partially dependent upon him. But what about the case of a seaman who leaves both classes of dependants?

Senator McGregor - That is dealt with in schedule 1. It makes provision for both wholly and partial dependants, and leaves it to the Judge to allot the compensation.

Senator MILLEN - Does it do that? I am sure that the Vice-President of the Executive Council will admit that I am not speaking as an opponent of the. Bill. Seeing that we have made one false start, I am very anxious to insure that every reasonable precaution shall be taken to prevent a repetition of what has recently occurred.

Senator Rae - How did Mr. Justice Scholes finally deal with the case to which the honorable senator has alluded?

Senator MILLEN - My recollection is too vague to enable me to say. It was not his decision which arrested my attention,, but the clearness with which he pointed out the difficulty which I have emphasized. I would suggest that the Bill be advanced to the report stage, and that, in the meantime, the Vice-President of the Executive Council should invite his officers to refer to the judgment in question for the purpose of ascertaining whether the statement of Mr. Justice Scholes does not warrant some amendment of the measure. If so, the Bill can be recommitted with that object in view. I am sure there is not an honorable senator who will not afford the Government every facility to make the Bill as perfect as possible.

Senator Lt.-Colonel Sir ALBERTGOULD (New South Wales) [4.25].- Whilst the Leader of the Opposition was addressing himself to this question, I took the opportunity of looking through the Bill, and I find that provision is made in the schedule for cases in which seamen leave dependants, who are wholly, or partially, dependent upon them. But the,mere fact of a seaman leaving behind him persons, some of whom were partially, whilst others were wholly, dependent upon him, would not interfere with the construction that would be placed upon the first part of the first schedule, which leaves it to the Court to determine the amount payable as being equal either to three years' salary, or ,£200. Paragraph 8 of the schedule reads -

Any question as to who is a dependant shall, iti default of agreement, be settled bv arbitration under this Act, or by a County Court, and the amount payable lo each dependant shall be settled bv arbitration under this Act or by a County Court.

Then paragraph 9 says -

Where there are both total and partial dependants, nothing in this schedule shall be construed as preventing the compensation being allotted p :i r t 1 v to the total and partly to the partial dependants.

It appears, therefore, that the schedule makes provision by which the difficulty which has been pointed out may be overcome. At the same time I realize that the Vice-President of the Executive Council would be acting wisely if he accepted the suggestion of Senator Millen, and directed his officers to look up the judgment given by Mr. Justice Scholes. If that be done, it may be found that there are differences between the State law and this Bill which account for the difficulty which presented itself to that Judge. It is well that we should take special care to avoid any trouble in the future. I take it that no honorable senator will object to perfecting the Bill as much as possible during its passage through Committee.

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